Filed 4/28/17 P. v. Perez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR PEREZ, JR.,

Defendant and Appellant.
H043349
(Monterey County
Super. Ct. Nos. SS140810A,
SS140795A, SS151828A)

Defendant Hector Perez, Jr., appeals from an order denying his petition for resentencing under Penal Code section 1170.18. Defendant contends that his felony convictions for forgery and burglary were eligible for resentencing under Proposition 47 as misdemeanors. We agree and reverse the order.

I. Factual and Procedural Background
On March 3, 2014, a business was burglarized and checks were stolen. Three days later, defendant entered the California Check Cashing Store and attempted to cash a check in the amount of $465 from the account of the burglarized business.
In April 2014, defendant was charged in case No. SS140795A with burglary (§ 459 - count one) and forgery (§ 470, subd. (d) - count two). The complaint also alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)).
In August 2014, defendant pleaded guilty to both counts and admitted the prior prison term allegations on condition that he receive a sentence no greater than six years and eight months to be served in county jail and that the sentence be served concurrent with the sentence in case No. SS140810A. The following month, the trial court placed defendant on probation for three years.
In August 2015, a notice of probation violation was filed alleging that defendant failed to complete a drug treatment program and failed to report to the probation department. In October 2015, a second notice of probation violation was filed alleging that defendant had failed to obey all laws by committing offenses in case No. SS151828A. In December 2015, defendant was found in violation of probation based on his plea in case No. SS151828A.
On February 16, 2016, the trial court terminated probation and sentenced defendant to eight-month terms on both counts to be served concurrently with the sentence in case No. SS151828A. Defendant then filed a petition to recall the felony sentence and to be resentenced to misdemeanors for counts one and two in case No. SS140795A. The prosecutor opposed the reduction of the burglary conviction to a misdemeanor. Following briefing by the parties, the trial court denied the petition.

II. Discussion
The Safe Neighborhoods and Schools Act (Proposition 47, as approved by the voters, Gen Elec. (Nov. 4, 2014)) added section 1170.18, which became effective on November 5, 2014. Proposition 47 amended certain statutes to reduce those offenses to misdemeanors and it also added new misdemeanor offenses. (§ 1170.18, subd. (a); People v. Chen (2016) 245 Cal.App.4th 322, 326.) Thus, a defendant who is serving a sentence for a conviction “of a felony or felonies who would have been guilty of a misdemeanor under the act . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections . . . 459.5, 473 . . . of the Penal Code, as those sections have been amended or added by this act.” (§ 1170.18, subd. (a).)
Defendant contends, and the People concede, that the trial court erred by denying his petition to reduce his forgery conviction to a misdemeanor pursuant to section 1170.18.
Section 473, subdivision (b) provides that “. . . any person who is guilty of forgery relating to a check . . . where the value of the check . . . does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year . . . .”
Here, the value of the check that defendant attempted to cash was under $950. Thus, the trial court erred by failing to reduce the forgery conviction to a misdemeanor.
Defendant next contends that the trial court erred by failing to reduce his burglary conviction to a misdemeanor.
Here, the trial court denied the petition as to the burglary conviction on the ground that defendant entered a commercial establishment to commit identity theft and forgery, not larceny.
Burglary is defined as entry into a building “with intent to commit grand or petit larceny or any felony . . . .” (§ 459.) Section 459.5, which was added by Proposition 47, establishes the offense of shoplifting. Section 459.5 provides: “(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”
The Attorney General argues that defendant “did not enter to the check cashing establishment to commit larceny but rather to utter a forged check which as we explain below also supported a finding of identity theft” and thus the trial “court correctly held that [his] offense constituted second degree burglary not shoplifting.”
People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) is controlling in the present case. In Gonzales, the defendant stole his grandmother’s checkbook and twice entered a bank to cash checks made out to him. (Id. at p. 862.) The defendant was charged with second degree burglary and forgery. He pleaded guilty to burglary and subsequently petitioned for recall of his sentence and resentencing under section 1170.18. (Gonzales, at p. 862.) The Gonzales court held that the “defendant’s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting” under section 459.5. (Gonzales, at p. 862.) The Gonzales court rejected the Attorney General’s argument that even if the defendant “engaged in shoplifting, he is still not eligible for resentencing because he also entered the bank intending to commit identity theft.” (Id. at p. 876.) The court reasoned: “A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct. The statute’s use of the phrase ‘the same property’ confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge. Thus, the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft here because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950.” (Ibid.) Accordingly, here, the trial court erred by refusing to reduce defendant’s burglary conviction to a misdemeanor under section 1170.18.

III. Disposition
The order denying defendant’s petition to redesignate his forgery and second degree burglary convictions as misdemeanors under section 1170.18 is reversed. The matter is remanded to the trial court for further proceedings.




 





_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.












People v. Perez
H043349